Posts Tagged ‘prosecutors’

Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time around, because … well, because we never bother to read NYT editorials.

This one is decent enough, so far as it goes. The Times points out that it’s up to the prosecutor to decide whether something is material enough to disclose under Brady, and so defendants very often don’t learn of facts that might have been favorable to them. With full disclosure, perhaps fewer defendants who are over-charged or improperly charged would plead guilty, and perhaps fewer wrongful convictions might result.

Yeah, but …

Here’s the thing: “Open file” policies are rarely that. Prosecutors’ offices with open file policies rarely (if ever) make their complete file available to the defense. More often “open file” just means they comply with their existing discovery obligations without putting up too much of a fight.

Prosecutors in general are unwilling to engage in true open file discovery, and for reasons that are anything but nefarious. It would be like playing high-stakes poker in a game where you and only you have to show all of your cards, all of the time. Unless you have four aces and a joker every hand, that’s a losing strategy. Defendants will be able to see all the weaknesses of the evidence with plenty of time to exploit them. People who “should have been” convicted will go free.

In practice, prosecutors only show their hand if it’s going to make the defendant fold. Or to the extent that it will persuade the defendant to fold. Show the ace, but don’t bother showing the 2, 6, 7 and jack.

Of course, it’s a misplaced concern to worry that people who “should have been convicted” will go free. If the evidence does not establish guilt beyond a reasonable doubt, then it doesn’t matter whether they did it or not, they don’t deserve to be convicted. It’s not even correct to think of whether they deserve to be convicted — the concern is whether the State is entitled to punish them. If the government’s evidence, all of it, is too weak to convict, then the State doesn’t get to punish. (What the defendant deserves only enters into it when asking how much punishment to inflict.)

We’re a proud alum of the office, but lately the office has had a different vibe, one that make us less proud. Outside the investigative division, which so far as we can tell has remained as professional as ever, there seems to be a distinct shift away from the higher standards of the Morgenthau office towards those of lesser offices. Although it hasn’t gone quote the way of, say, Nassau County, the change has been clearly noticeable.

In this morning’s article, the DA’s spokeperson tried to defend the office’s handling of the Strauss-Kahn case. In doing so, she made a key statement that seems to explain what’s going wrong:

“At every step of the way, the district attorney’s office made the right decisions. We pursued an account of a sexual assault that was corroborated by witnesses, electronic evidence and DNA evidence. That evidence was more than enough to present to a grand jury, which indicted the defendant. After the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led. Today, we did just that.”

This is a defense? Cy, if you’re reading this, that statement is an indictment of your office, not a defense.

First of all, if you only have enough evidence for an indictment, you don’t seek an indictment. We were trained not to write up a case unless it was one we were confident we could prove beyond a reasonable doubt at trial. The evidence sufficient to obtain an indictment is laughingly slim — one only needs to convince a bare majority of the grand jury that it’s probably more likely than not that the crime could have happened, on the barest evidence that has not been tested or challenged in any way. If the best you can say of your evidence is that is is “enough to present to a grand jury,” then you need to keep investigating.

Second, “after the indictment, the district attorney made clear that the investigation would continue and prosecutors would take the case wherever the facts led?” Are you shitting us? You mean you sought an indictment before you’d even completed your investigation? That’s the kind of amateurish, shoot-first-and-ask-questions-later approach we’ve come to expect of the embarrassingly bad DA’s offices. It’s not what the Manhattan DA’s office is supposed to do. No, you’re supposed to complete your investigation first, and only then seek an indictment. You don’t go to the grand jury until (1) the investigation is complete, (2) the investigation has convinced you that the suspect is guilty and that you can prove this guilt beyond a reasonable doubt at trial, and (3) you’ve made a policy determination that prosecution is the right thing to do in this case. Ideally, but not required, one also (4) presents the opportunity for a pre-indictment plea, which in our experience often leads to discussions that can shut down a misguided prosecution before it’s gone too far.

We’ve certainly seen more of this reckless prosecution lately, and it’s never been to the credit of the office. Each time, it’s only made the office look worse. And we’re not the only ones noticing. When we speak with other defense colleagues about this, almost all are in agreement that this change under Vance has only damaged the office’s reputation.

It’s a shame for the office, of which we would like to remain proud. It’s a shame for Vance, whom we genuinely like and want to see succeed. But it’s worse than shameful to shoot from the hip like this, trying to score points at the expense of the lives of real people.

The Northern California Innocence Project at Santa Clara University School of Law has released a troubling study of prosecutorial misconduct in California. The report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” opens by pointing out that of course the majority of prosecutors behave ethically, but then it dives right into more than a hundred pages of statistics and analysis of a systemic and system-wide crisis, and the ineffectual attempts to deal with it. (For those in a hurry, the 8-page executive summary is here.)

The period of this study coincides with our own career — we got our JD in ’97, and spent the next several years prosecuting before joining the side of the angels. We were intrigued to see if the results of the California study meshed with our experiences in New York. (The overwhelming majority of our colleagues at the Manhattan DA’s office were extremely ethical and took such things seriously, but we did have occasion to note and object to certain practices. On the defense side, dealing with all kinds of state and federal offices, we’ve seen more sloppiness and lack of judgment than actual misconduct, though again there has been the occasional bad act.)

The study reviewed a sample of 4,000 cases during that 12-year span, where an appellate court was asked to make a finding of prosecutorial misconduct — the most in-depth such study anywhere, ever — and found 707 where a court decided there really had been misconduct. As the summary puts it, that’s about a case a week. When you consider the simple fact that only the rarest case of prosecutorial misconduct gets appealed — only about 3% of cases even go to trial — plus the fact that a great deal of such misconduct can never be discovered by the defense (such as Brady violations), the true quantity of misconduct must necessarily be a dramatic multiple of the study data.

Most of the prosecutors who commit misconduct, the study found, do so repeatedly. Why? Because they get away with it. They almost never get caught. And when they do get caught, there aren’t any personal repercussions. Disciplinary action is so rare as to be practically unheard of. And civil liability isn’t going to happen, because they have absolute immunity for their official conduct.

The study concludes that “the scope and persistence of the problem is alarming. Reform is critical.” It’s not a problem just of a few rogue prosecutors. It’s a problem of the judges who don’t deal with it, a system that doesn’t deter it, offices that don’t stop it. It’s the problem of the good prosecutors, whose authority and trust suffer by association. It’s the problem of the innocent, who find themselves convicted time and again because the prosecutor sought a victory rather than justice. It’s the problem of the guilty, who are denied their rights to due process and constitutional protections. And it’s the problem of the criminal justice system, which relies entirely on prosecutors doing their job right in order for the system to function at all.

What reforms do they suggest? Revised ethical rules, for one, to bring them more in line with the ABA’s model rules. Some actual disciplinary action by the state bar, when the rules are broken. Replacing absolute immunity with immunity only for official conduct that wasn’t misconduct. Better reporting of misconduct findings, including the prosecutor’s name and the kind of violation. Better ethical training for prosecutors, and internal procedures for preventing and dealing with misconduct. It’s all pretty much common-sense stuff, already in practice in plenty of states.

It’s a shocking report. The players in California’s criminal justice system need to get their act together, and fast. This is a wakeup call — let’s hope they heard it.

Every defense attorney has their own favorite metaphor for what we do. Some talk of it like a street fight, envisioning a slugfest with the cops or the court or DA (or all three). Others speak as if it’s a poker game (with the other side usually holding all the aces). Occasionally, we even hear chess analogies. Well, for whatever reason, we tend to think in fencing terms.

On the one hand, this makes little sense, as we haven’t fenced much since our kids started coming along. (Literally. Our wife went into labor with the first one right in the middle of us getting trounced by some French guy in an épée tournament.) But on the other hand, we do find the analogy extremely useful.

Like fencing, much of what we do is reactive. There’s something they teach fencers called the “tactical wheel” which starts off with a simple attack, which gets countered by a parry and riposte, which gets countered by a feint, which gets countered by a counterattack into the feint, and so on until you’re reacting with a simple attack. You’re always reacting to what your opponent did, and trying to use your reaction to score off him instead. That’s pretty much what we do.

Note that each reaction is not merely a defensive parry. If all you’re doing is deflecting attacks, you can never win. Eventually, one of them’s going to get through. Every defensive action is an attack of some sort. You win by taking the game to the other guy. You go on the offense. Make the other side react to you. The best defense, as always, is a good offense.

And as in fencing, you pretty much have to take your opponent as you find him. Different tactics are going to work with different situations. It’s nice to know what works when.

That whole “tactical wheel” thing only really works, of course, if both you and your opponent are of intermediate skill. A novice doesn’t always do the smart thing, which throws such rote tactics into disarray. An expert, with a zen-like empty mind, is not hindered by the rule of thumb, and is free to react to this particular action in the most effective way. Still, there is something to be said for a rule of thumb. When all else fails, you have something to fall back on, which at the very least assures you of a solid, workmanlike job. It may not be elegant, but the odds are safe. And with the vast majority of opponents, it’s going to be all you need.

“Nathan, when you become mayor, I’m gonna be the first volunteer for your security detail.”

This was a detective speaking, back when we were an ADA in the Manhattan DA’s office. My office, as usual, had about five cops in it. I liked this detective, and asked how come he wanted that job.

“So I can be first in line to put a bullet in your head.”

He was only half kidding.

The reason is because I’d just proposed, in detail, exactly how I would cut out the NYPD’s systematic corruption that caused — and still causes — a great deal of injustice.

Several years have passed, and nothing has changed. The NYPD is still set up to fail. No matter how good its officers may be — and most really are quite good — the NYPD is designed not to serve justice, but to frustrate it.

-=-=-=-=-

There are several areas that need fixing. But the single fix that would have the greatest effect would be to end the NYPD’s “collars for dollars” mentality.

The force is structured so that cops wind up getting paid a commission — actually a bounty — for every arrest they make. There’s a huge financial incentive for a cop to make an arrest, and there is zero downside if the arrest turns out to be bullshit. Cops can easily game the system to maximize their pay.

Meanwhile, there’s huge political pressure on each command to “make its numbers” each month. Not quotas, per se, but a sufficient number of arrests to justify the command’s existence to the politicians who (more…)

The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.

One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.

But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.

So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.

So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.

Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.

The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.

So the trick is to get better, not more, prosecutors. How do you do that?

You don’t really need to pay them more. It’s a government job, so it (more…)

We apologize to our loyal readers for the unusual delay between posts. We’ve been on trial, and you know how that goes. Trial is all-consuming. And then there’s all the work that piles up in the meantime. And the wife and kids need a token appearance from us once in a while. So the blog just isn’t happening while we’re on trial.

And that’s how it should be, of course.

So yeah, we’ve been on trial since November 2. We keep predicting that it will end soon, but it never does. With any luck, we’ll have closing arguments tomorrow. But we said the same thing yesterday, and on Friday, and on Thursday… And we’re going to have to take Thursday off if the jury’s still not back with a verdict then, because we’re giving our next “Hope for Hopeless Cases” lecture for West Legal Ed Center that day. So yeah, this case could easily last through Friday.

To tide you over until we finally get a chance to blog again, here’s a link to our latest article in Forbes magazine.

It didn’t take long after the housing boom turned bust and trillions of dollars of wealth had gone poof that the public was out for blood. The government needed to “do something” about the mess.

An obvious point of focus were the securities firms Bear Stearns (now a part of JPMorgan Chase) and Lehman Brothers (now a part of Barclays) which blew up in quick succession. From there, it does not take a huge leap of logic to understand how federal prosecutors set their sights on Ralph Cioffi and Matt Tannin, two former managers of Bear hedge funds who were plucked out of obscurity, paraded through a perp walk and unceremoniously read their rights as criminal defendants.

As their Nov. 10 acquittals attest, they didn’t actually commit any crimes. But that didn’t spare them from two years of hell during which they were investigated, indicted, vilified, prosecuted and put on trial. If they’d lost, that would have all been a picnic compared with the 20 years of prison time they would have faced.

If the case teaches us anything, it’s that such ordeals can befall executives–innocent and otherwise. If enough things go wrong on their watch, it’s not all that rare for bosses to find gung-ho prosecutors eager to indict them before all the facts are in.

That leads to the question: What can you do to protect yourself if you fall under the eye of a suspicious prosecutor? Here, the Bear Stearns case is instructive.

Lesson One
You’re on your own. If you ever find yourself on the receiving end of an indictment related to your professional activities, don’t count on your…

I love reading Scott Greenfield’s blog Simple Justice. He posted a good one the other day called “Another Prosecutor Loses Her Virginity,” about a former prosecutor, Rochelle Berliner, now a defense attorney, who just came to the realization that cops sometimes lie.

Her epiphany was published in Saturday’s New York Times, in an article headlined “Drug Suspect Turns Tables on NYPD With Videotape.” A pair of defendants had actual video evidence that the cops had totally fabricated the entire basis for their arrest, and they gave the video to Rochelle.

”I almost threw up,” she said. ”Because I must’ve prosecuted 1,500, 2,000 drug cases … and all felonies. And I think back, Oh my God, I believed everything everyone told me. Maybe a handful of times did something not sound right to me. I don’t mean to sound overly dramatic but I was like, sick.”

Scott has a typical defender’s take on this.

What is disturbing about Berliner’s exclamation is not that she spent 14 years prosecuting people without having realized that maybe, just maybe, her cops weren’t perfect. That’s to be expected of career prosecutors, who often spend their entire careers with their heads deeply embedded in the cops’ derrière. It tends to give one a poor view of reality. It’s that she spent four years since leaving Special Narcotics as a defense lawyer and yet, not until now, was aware of the fact that cops, sometimes, fabricate crimes out of whole cloth. That’s four years of defendants represented by someone who was certain that they wouldn’t have been arrested if they weren’t guilty.

. . .

Rochelle Berliner now knows better. Welcome to the ranks of criminal defense lawyer, where we don’t have all the answers but we do know that the prosecution doesn’t either. You’re lucky that you’ve joined in the age of pervasive video, or you still wouldn’t believe this possible. Imagine how many times before the age of video Dominican immigrants like the Colon brothers were convicted for crimes that never happened, with someone like you feeling awfully good about it. I can understand why this would make you sick.

So congratulations on losing your virginity. I hope it didn’t hurt too much. I’m sure it didn’t feel very good for Jose and Maximo Colon, and I hope Police Officer Henry Tavarez loses his soon.

We didn’t want to comment on this, at first, because it so happens that we worked with Rochelle for a few years in Special Narcotics, and we knew and liked her. And frankly, she is well-equipped to defend her own self if she so desires.

But Scott’s piece, and a couple of the comments posted to it, kept nagging at us. There are some things we think really ought to be said here. So here’s our two cents’ worth:

First of all, a quick and unnecessary defense of Rochelle. We’ve known a whole array of prosecutors in our time, and Rochelle was one of the good ones. There certainly are prosecutors out there who are so misguided as to believe that their job — we kid you not — is to fight to convict anyone the cops bring in. We once walked out of an interview (with Dade County) where that exact philosophy was espoused. And there are plenty others who just put in their time to do a workmanlike job, without pushing themselves too hard one way or the other. But there are a significant number who truly believe their job is to achieve a just outcome, taking everything into consideration. Rochelle always struck us as being one of the latter.

And yet her bullshit meter seems not to have been working properly for nearly 18 years. What gives?

Speaking for ourselves, we like to think our own B.S. meter was working just fine — at least a lot of the time. We pissed off a lot of cops in our day. And there are some ex-cops who probably still rue the day that they lied to us. But there’s no way our B.S. meter was on all the time. It’s impossible.

We worked with a lot of the same detectives, over and over. You get to know the teams pretty well. They’re almost friends, some of them. You learn which ones are straight arrows, which ones are clowns, which ones are unscrupulous or lazy, and which ones are just along for the ride. You learn that most of them are happily gaming the system to make as much overtime as possible. You also learn that most of them couldn’t care less whether someone gets convicted after the arrest is written up. And hopefully you’re able to listen to each individual with the appropriate level of disbelief.

But when you’ve worked with someone for a while, and gotten to know them, it’s natural to let your guard down. How skeptical are you likely to be of someone who’s been pretty straight with you for as long as you’ve known them? And even if you do retain some skepticism, so what? There has to be a reason to suspect that the facts are not what you’re being told, and most of the time there’s no reason to do so.

Part of this is the randomness of real life. Maybe there’s a little detail that’s not right — or perhaps too right. But that’s life. The truth is rarely ideal. So it’s not easy to tell when any particular glitch in the matrix is a clue to something more sinister.

Part of this is the sheer routineness of drug cases. There are only so many ways these crimes happen, and the facts don’t vary too much from case to case. When the story you just heard happens to fit the pattern of the past thousand cases you’ve handled, it would be strange to be skeptical.

So even with a fully-functioning B.S. meter, there’s no way you’re going to catch everything. You just do the best you can.

The irony is that, the longer one serves, even as one’s knowledge of street reality grows from rookie ignorance to near-expert mastery, one’s ability to sense bullshit decreases dramatically, for all the reasons just mentioned. You’ve known the cops forever, you’ve handled this same kind of case countless times before, and the story just rings true.

This is where we defense attorneys have an obligation.

I’ll give my defender readers a moment to recover. Yes, I actually suggested that we are obliged to do something here.

You okay? Good. Yes, we defense attorneys have an absolute duty to ensure that prosecutors are given all the tools necessary to flush out the bullshit. This isn’t burden-shifting, it’s an imperative of our role.

For street crimes, the only facts an ADA or AUSA has in any given case are those provided by the cops or agents involved. If those facts fit together, there is no reason to believe the truth is otherwise.

It is so rare as to be remarkable for a defense attorney to come to a prosecutor with new facts, or a new way of looking at the facts. But most of the time, whenever it happened to us or we’ve done it ourselves, it was most assuredly worth it.

In any given case, the prosecutor has already made up his or her mind about guilt, innocence, and the appropriate plea, based on the facts provided by the cops. No amount of whining or cajoling or begging is going to change their mind. And yet that is precisely the idiotic strategy used by so many defenders out there. The only way to change someone’s conclusions is to present new facts that change the conclusion.

This isn’t burden-shifting, it’s a defender’s duty. Our job is to protect our clients, period. If the prosecutor is holding all the cards, and is going to make the biggest decision of our client’s life, we need to do what we can to make sure the right decision is made. We have an obligation to extract from our (yes, probably unwilling) client and other witnesses the facts that will make a difference.

And you know what? When a defense attorney came to us with new facts, or a new way of looking at them, we listened. We didn’t listen to the whiners, but we did listen to those who truly advocated, who had something we needed to hear. And more often than not, at least in our experience, such advocacy resulted in a dramatically improved outcome for the defendant. We were known to even dismiss indictments, if the new facts warranted.

* * * * *

We can’t end this without revealing a dirty secret, however. Prosecutors are only human, after all, and even the best are subject to incentives that reduce the likelihood that their bullshit meter is on full power.

Some people just want to be liked, and so they go along with whatever the cops tell them. These people are patsies and pushovers, and tend not to last long as prosecutors.

Some people befriend the cops, and so become not the advocates of the People, but of the officers. They go to bat for their cops — and yes, “their” cops is how they’d phrase it — even against the cops’ own supervisors. Friendship and loyalty are powerful human traits, and it’s the exceptional person who can act in spite of, rather than in keeping with, such emotional forces.

And some people are ambitious. A prosecutor without ambition is something of an oddity, and one is never quite sure about them. Ambitious prosecutors want good cases. They want big cases. They want that one case that makes them feel like they’re actually making a difference, and not just holding back the tide with a teaspoon.

Well, the big cases don’t just land in your lap. They are brought to you. And they are brought to you by the cops. And the cops won’t bring them to you unless they like you, feel like they can work with you, and trust you do prosecute the case the way they’d want it to be prosecuted.

Are the cops going to bring their big cases and investigations to the ADA who’s always giving them a hard time? The ADA who busts their balls over every little glitch? The ADA who doesn’t go to bat for that RDO overtime once in a while? Hardly.

So this is a real, albeit unspoken incentive. (Actually, it’s not unspoken. We were told this plainly and clearly by multiple prosecutors and cops during our time with Special Narcotics. Sometimes as a warning of what to watch out for, but also sometimes as instructions on how to act if we wanted to start getting those juicy investigations.)

So an ambitious prosecutor has an incentive to act in such a way as to increase the chances of bagging the big cases. Does that mean such prosecutors are necessarily turning off their B.S. meters? That they’re consciously avoiding knowledge of the truth, or knowingly deciding not to challenge the story they’re getting. No, not at all.

It’s not a conscious process. It’s a perfectly human, unconscious thing. The decision is probably not passing through the frontal lobes. It just happens that way.

* * * * *

So there are all kinds of reasons — some justifiable, some not — for prosecutors to believe tales told by cops that may not be exactly truthful.

Knowing this to be the case, what should we defense attorneys do about it? Should we throw up our hands and bemoan the injustice of it all? That wouldn’t accomplish anything. Should we fight to change the system, so that it minimizes the inevitable injustices occasioned by its administration by human beings? Of course, and that’s been the role of our jurisprudence since Magna Carta, but it’s hardly useful on a case-by-case basis.

What we need to do is acknowledge that this is a phenomenon that occurs. That there are reasons why it occurs. And then take the necessary action on our own part to minimize the injustice. If we have facts that the prosecutor ought to know, then share them! Better to persuade one lawyer now than to hold on to the facts and seek to persuade twelve random jurors a year from now. If we have a perspective about what the facts mean, then persuade the prosecutor. Don’t whine or plead, just make a rational argument from shared principles. It works often enough.

And if push comes to shove, and you have a fight on your hands, then goddammit fight. But don’t just complain that the system is unfair.

Good defense attorneys like Scott Greenfield get this. Good prosecutors get it, too.

Nathaniel Burney writes The Criminal Lawyer mainly for his own amusement and that of his sexy sexy followers. Although he is brilliant, talented and charming, he's modest enough to admit that he's also dashingly handsome. You can learn more about him at his firm's website.

This blog does not constitute legal advice, and does not create or imply any attorney-client relationship. If you have a real legal issue, the internet is not a substitute for a real live lawyer. Your local county bar association should be able to recommend one for you.